Home > Articles, Golden Thoughts > Beyond the Public Outrage: Saving the Nigerian Child the Right way by Senator Ihenyen

Beyond the Public Outrage: Saving the Nigerian Child the Right way by Senator Ihenyen

Budgit-Infographic-ChildNotBride

From the way they understand it, many Nigerians have continued to widely criticise the Senate for voting in favour of the legality of underage marriages in the Constitution. In other words, the
Nigerian Senate has approved marriage for underage girls, irrespective of their age in the country.

There are other views though that hold otherwise, but many of these views inherently have a lot of religious, socio-geographical and ethnocentric colourations, quite typical of public opinion in Nigeria. It is such views as the latter you will readily find not only in updates and comments, tweets and counter tweets on Facebook and Twitter, and other social media platforms, but even in our national newspapers! Many of us have been completely “swept-off” our feet by another sensational story. However, we need to look at the real issue.

In 2009, Senator Ahmad Yerima, former governor of Zamfara state, had sparked wide outrage, locally and internationally. This was in relation to his attempt at justifying his marriage to a 13-year-old Egyptian girl based on his Islamic right. The allegation of child marriage against Yerima was investigated but the former governor “got away with it” when Mohammed Bello Adoke, who was at the time the Attorney General of the Federation (AGF), said he could not be prosecuted under the law since marriage contracted under Islamic law being a native marriage is valid and recognised under the Constitution. This is the position of law, not necessarily morality, as many Nigerians tend to think.

Against the above background, it is reasonably understandable that when on Thursday, 18th July, 2013, the same “culprit” now Senator of the Federal Repiblic of Nigeria, Senator Ahmad Yerima (Zamfara West) succeeded in getting enough votes from his colleagues in the Senate to “approve marriage for underage girls”, there was an understandable reactive wave of outrage by many Nigerians and the international community. To many, this is tantamount to a big slap on their faces, not once, but twice!

Perhaps, it is this angry reaction that must have informed the rather hurried conclusion by many Nigerians that the Senate had voted in favour of legalising underage marriages, an opinion that some have rather bluntly dismiss as a product of sheer ignorance of the average Nigerian. But if you ask me, it is not the “average Nigerian” we should worry about, but the manner in which some of the media houses report or write about the development.

From the Sun newspapers, for instance, you have a story like this one:Nigeria: list of the PEDOPHILE Senators that voted for girls underage marriage “Nigeria: list of the PEDOPHILE Senators that voted for girls underage marriage”. And the Daily Post didn’t “give a damn” when it published this:Give the girlchild pen, not a penis – Nigerians kick against underage marriage law

By putting ‘child marriage’ in quote, the Punch appears to have attracted public attention while also saving their face:Nigerians knock Senate over ‘child
marriage’ law”
. Though appearing to have literally jumped into the bandwagon with, This Day Newspapers, with this article title, Fayemi, Groups Condemn Senate’s Position on Underage Marriage Law eventually played safe too in the fifth paragraph of the article. There, it stated that “Fayemi was reacting to Wednesday’s debate at
the Senate, where Senators had reversed a vote that appeared to outlaw underage marriage (emphasis mine) in the ongoing constitution amendment…”. The Guardian also published a traffic-pulling story title, Child Marriage: Women Lawyers Criticize Senate’s Resolution, only to have stated in the opening paragraph that the International Federation of Women Lawyers (FIDA), Nigeria, “has expressed dissatisfaction with the resolution passed by the Senate to retain the provisions of section 29 (4) (b) of the 1999 Constitution of the Federal Republic of Nigeria, which deems a married underage girl as an adult (emphasis mine). Not “child marriage” as deliberately suggested in the titled.

SaharaReporters.com was more daring with this one, Child Marriage: Our Senators Have Gone Loco. But you can’t miss the bold disclaimer under the article “The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of SaharaReporters”. But Femi Fani-Kayode’s a A nation of paedophiles in Vanguard’s Periscope went for the jugular, but without similar caution. It is such view as the latter that has constituted the bandwagon, having erred in reading between the lines.

The real issue is a constitutional one, not a moral debate. The Senate Committee on Review of the Constitution had made recommendations to the house to effect amendments of certain sections of the extant Constitution. One of these sections is section 29(1)-(4) of the 1999 Constitution (as amended). This section clearly provides for the renunciation of citizenship, and states the conditions that must be met before such renunciation can be valid. Section 29(1) states:

“Any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship (emphases mine) shall make a declaration in the prescribed manner for the renunciation”.

Therefore, any provision under section 29 operates as a subsection only limited in meaning and in scope to the definition stated in the section as qualifying provisions to the primary section. In this case, the scope of subsections (1), (2), (3) and (4), with its paragraphs is limited to section 29, on renunciation of citizenship, not by any stretch of the imagination, marriageable age of any child. To be sure, paragraphs (a) and (b) of subsection (4) are only applicable to to “renunciation of citizenship”.

For clarity, in section 29(4) paragraphs (a) and (b), it is stated that:

“For the purposes of subsection (1) of this section –
(a) “full age” means the age of eighteen years and above;
(b) any woman who is married shall be deemed to be of full age.”

The Senate had initially voted 75-14 to pass the proposed amendment which defined “full age” as “the age of 18 years and above,” in effect expunging paragraph (b) of section 29(4). At the instance of Senator Yerima and some of his colleagues however who believed that Senate President David Mark’s initial refusal to reopen voting on the matter was “double standard” and not just his his mere zealousness to conform with Senate policy on revoting, the matter had been reopened.

Senator Yerima, quite typically, had argued that the Constitution prohibits the National Assembly making legislations on matters pertaining to Islamic and Customary laws. He submitted that under “Islamic law, any woman that is married is of age and if you say 18 years you are going against Islamic law.” Of course, his motive was not uninformed by his indulgence in child marriage, a clear fact that betrayed in itself the former governor’s confusion as this was not a law meant to validate underage marriages, but regulate citizenship renunciation by married women, even if in early marriages.

We must begin to appreciate that this issue is not about paedophiles. If by any stretch of the imagination we consider the action of the Senate as legalising underage marriage or “smuggling underage marriage law” into the Constitution, what is the position of the law?

Assuming without conceding the above premise, to properly determine the validity of the position of the 35 Senators who reversed a vote that “appeared to outlaw underage marriage”, the position of the law is clear on this issue. It is not a morality issue. Morality is a standard too unstable and unpredictable to govern a state, not to mention a complex multi-religious and multi-ethnic country like Nigeria.

Section 10 of the Constitution is sacrosanct. The Government of the Federation or of the State shall not adopt any religion as State religion. The right to freedom of thought, conscience and religion is also constitutionally guaranteed under section 38(1). As far as the law is concerned, Senator Yerima, any of the 34 Senators, and any Islamic faithful who chooses to exercise his right to religion and propagate same in worship, teaching, practice and observance has the constitutional right to engage in early marriages. It is only under the Marriage Act that we can possibly have “underage marriages” (marriage to a minor). This is because the Act expressly stipulates 21 as the marriageable age. However, under customary law, such as Islamic law, there is no specific age stipulated for marriage. And the Constitution recognises native marriages under our customary laws.

What is more. Even a limb of section 35 of the Marriage Act states that “nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.” Of course, marriage under Islamic law in Nigeria constitutes “customary law”. Many Nigerians, particulaly from the South, found this position too morally unacceptable to be legally correct. But morality, just like law, can be an ass. It can be very dangerous too. Does Boko Haram not claim to be a product of a certain standard of morality, what we euphemistically term Islamic fundamentalism? Morality is relative to space and time. It cannot be separated from region, culture, and the environment.

The drafmen who included section 29(4)b of the Constitution were only being practical, to avoid being most likely labelled as a bunch of hypocrites in a secular society like ours. One of the main functions of the law is to protect its subject. No one can deny that child marriage has been in existence in Nigeria, particularly in Islamic communities in the north. This is also true in other countries such as the Turkey, Germany, Saudi Arabia, the UK, including many other countries. However, it cannot be denied that one of the highest rates of child marriage in the world is found in the northern part of the country, where nearly half of girls here are married by the age of 15.
And some of the consequences have been that Nigeria have the highest maternal mortality rate in Africa and one of the world’s highest rates of fistula, a condition that can occur when childbirth pressures tears a hole between the vagina and the rectum or bladder. These are serious public health issues that no doubt need public policy and proactive laws for effective control.

The Federal Government has not turned a blind eye to the worrisome situation though. In 2003, the Child Rights Act was enacted, prohibiting marriage under the age of 18. However, in the northern states where Islamic faithfuls are predominant, we have been witnessing a fierce resistance to the Act. Seen to be anti-Islamic, the Act has only been adopted by one of the dozen Muslim states, but even at that not without a crucial amendment which substituted “the age of 18” for the word “puberty”.

There is little or nothing the National Assembly can do about it. Under the Federal Constitution we currently operate, each state has the constitutional liberty to make amendments to Acts or legislations to bring them into conformity with their customs and norms.

Moreover, when you add the constitutional argument to the Islamic belief that early marriage is not immoral, there is really nothing more to say. Muhammad, who is considered the perfect example (Uswa Hasana) by all Muslims, at the age of 54, is known to have also indulged in early marriage with Aisha, a 9 year old girl. She had been married to the prophet when she was seven years old, and taken to his house as a bride when she trurned nine (Sahih Muslim 8:3311). And the issue of lack of valid consent by a minor to marry a man is raised, the teaching in Islam is that mere silence implies consent.

If you smell some level of potential dangers of subjugation or exploitation of the girl-child or abuse of her personal dignity in such situation as the above, I also do. But the constitutional recognition of these practices under Islamic law or customary law has largely rendered our fears and concerns, genuine or otherwise, literally impotent.

However, it is not all bleak. In the spirit and letters of the Constitution, the right of every person is protected. The girl-child in an early marriage is no exception. Section 34(1) of the Constitution guarantees the right to dignity of the human person. Thus, no person shall be subjected to torture or inhuman or degrading treatment; held in slavery and servitude; or required to perform forced or compulsory labour. In the northern states of Nigeria, you will agree with me that this is the common picture of most early marriages. Ironically however, such inhumanity is itself frowned at by the concept of “emancipation” of the girl-child from such conditions through the instrumentality of early marriage in Islam.

Section 35(1) although provides that every person shall be entitled to his personal liberty and shall not be deprived of such liberty, but not without certain restrictions. Section 35(1)(d) specifically states that in the case of a person who has not attained the age of eighteen years, his right to personal liberty can be lawfully and rightly derogated for the purpose of his education or welfare. Apart from this fundamental provision, to also robustly advocate for the education and welfare of the girl-child, section 45(1) provides a formidable pillar of support:

“Nothing in section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –

(a) in the interest of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedom of other persons.”

The likes of Senator Ahmed Yerima may have the right to practice their religion, but same can be restricted based on overriding right to education of the girl-child. Every reasonable man in this country knows and must be deemed to know that the alarming rate of children, especially girls in the north that are out of school is most unacceptable in the year 2013, less than two years away from the MDG goals 2015. Public health such as the high rate of VVF particularly among teenage mothers is also another serious issue we are confronted with. Add to these, the moral question on a picture showing a child in the labour room, while his contemporaries are in the classroom.

Finally, in a situation where the girl-child claim to have excercised her personal liberty by consenting to the marriage, should we be helpless? I think not so. The provisions of 35(1)(d) can be invoked on the ground that for the purpose of her education or welfare, the court should protect her even from herself since a girl under eighteen cannot make a valid consent under the Constitution.

Rather than calling the 35 Senators paedophiles, we should be strongly advocating for Acts and laws in the Federal and state levels respectively towards saving the future of the Nigerian child.

Senator Ihenyen is a Lawyer, author, creative writer and blogger. He is currently the Project Manager of Golden Minds Nigeria.
Facebook profile: Sen Ihenyen
Literary blog: http://www.senatorihenyen.wordpress.com

  1. 26/07/2013 at 14:37

    You have a point sir. The truth is, man cannever rule himself without problems. We need God to intervene.

  2. ken Ejiofor
    26/07/2013 at 22:38

    Great work

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